Modern Day Illegality: Mance LJ and the Range of Factors Approach

AuthorMelanie Yu
PositionUniversity of Southampton
[2019] Vol.9
Modern Day Illegality: Mance LJ and the Range of Factors Approach
Melanie Yu
University of Southampton
The longstanding principles underpinning equitable and common law proprietary claims in relation to
illegality have recently been reconsidered in the Supreme Court, the outcome of which was a change
of approach in assessing reliance on illegality. This paper explores Mance LJ’s (as he then was) distaste
of abiding by established illegality doctrines and the extent to which his view was echoed and adopted
when the scope of the illegality principle was deliberated. Analysis of the coherence and
appropriateness of the different approaches to illegality will be provided in this paper. Further, the
application of the new approach in illegality will be reflected upon.
he issues of illegality, presumption of advancement1 (POA) and locus poenitentiae have
caused uncertainty in trusts, all of which were addressed through Mance LJ’s dissent in
Collier.2 In Collier, a father granted his daughter leases over properties and options to
purchase the freehold of the premises. Subsequently, a dispute arose as to who should benefit from the
The father, to assert title over the properties, referred to a letter signed by the daughter’s mother
confirming that the daughter had no interest in the properties. The letter was deemed irrelevant,3 and
judges’ opinions differed as to whether an agreement as to where the beneficial interests should lie
existed between the parties. Nevertheless, whether the judges perceived that a trust existed4 or not,5 it
1 Ford Lord Grey v Katherine Lady Grey (1677) 36 ER 742.
2 Collier v Collier [2002] EWCA Civ 1095 (CA).
3 Collier (n 2) [35] (Aldous LJ); [68] (Chadwick LJ); [87] (Mance LJ).
4 Collier (n 2) [36] (Aldous LJ); [88] (Mance LJ).
5 Collier (n 2) [70] (Chadwick LJ).

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